In the last update, I have
mentioned a case against Yahoo China brought by the IFPI because of links to web
sites with unlicensed MP3 downloads. In April, a Beijing court ordered
Yahoo! China to pay about 200,000 yuan (26,000 dollars) in damages for assisting
downloads of unlicensed music in other websites and delete 229 links to free
Baidu.com, operator of China's
largest search engine, had more luck last year: In a similar case, but under
other regulations, the company wasn't found liable for copyright
violations. "The Beijing Court has confirmed that Yahoo China has clear
responsibility for removing all links to the infringing tracks on its service,"
Kennedy, the IFPI's chairman and CEO said in a statement. "Because this is a
judgment made under new regulations in China, today's judgment supersedes the
previous decision on Baidu and confirms the responsibility of all similar music
search providers in China." Yahoo! China plans to file an appeal.
April 24, 2007:
Yahoo China ordered to curb music links, CNN:
"A Beijing court has ordered Yahoo China to delete links to free Web sites
offering music-downloads and to pay about 200,000 yuan ($27,200) for
facilitating distribution of unlicensed songs by other sites, Xinhua news
agency reported on Tuesday."
2. Feldman v. Google - AdWords Contract Upheld
According to the U.S. District Court for the Eastern District of
Pennsylvania, a forum selection clause in an online contract's terms is
acceptable, and will not absolve a party who clicks "I Agree" without taking the
time to view the whole agreement as long as it is readily accessible and clear.
So the court did uphold Google's mandatory venue provision in its AdWords
contract specifying that all lawsuits shall be brought in California. So the
click fraud case between Feldman and Google was transferred from Pennsylvania to
California. According to Prof. Goldman, this "should inhibit AdWords advertisers
from suing Google all over the country. Therefore, all lawsuits will have to be
in Google's home court..."
Feldman v. Google, Inc., Decision of March 29, 2007, United States District
Court, Eastern District of Pennsylvania
3. Utah SB 236 - No more keyword advertising in Utah?
Utah last month enacted
Utah SB 236, the "Trademark Protection Act," a law
that effectively prohibits the competitive use of trademarked terms as keyword
advertising triggers. The Act establishes a new type of mark called an
Electronic Registration Mark. Once a mark is electronically registered, the
statute prohibits use of the Electronic Registration Mark to trigger advertising
for a business, goods, or services of the same class as those represented by the
Electronic Registration Mark.
What happened to lawful competitive advertsising? No wonder, the
new law isn't winning any praise. A Google spokesman said Google believes
the new law is likely to be challenged in court and struck down as
After a meeting with senior
executives from Google, eBay, Microsoft, America Online, Yahoo, 1-800 Contacts
and Overstock.com met, the state has a better idea of who they
are up against and now have to decide if the law is worth a
Rep. David Clark, House majority leader and co-sponsor of the suddenly
controversial legislation said after the meeting: "I don't know that we'll
repeal it, but we understand we've got some work to do."
Google Inc has settled a copyright dispute with
Agence France-Presse permitting the search engine to post parts of the agency's
news and photos onto its Google News site. In its lawsuit, which was filed both
in the U.S. and France, AFP had sought damages of at least 17.5 million dollar
as well as a court-imposed order barring Google from including its material in
In a joint statement, the two companies said the settlement allows Google to
post AFP content on Google News and other services. Terms of the pact were not
disclosed. The deal will let Google use AFP material "in innovative, new ways,"
Google settled a separate dispute with The Associated Press in August 2006.
April 6, 2007, Modine,
(Agence) France(-Press) surrenders to Google, The Register:
"News agency Agence France-Presse entered a ménage à deux today with Google
en lieu of a $17.5m lawsuit over its news stories appearing on Google News."
5. Google's Data Retention Policy sparks
a. Norwegian Data Inspectorate
“Why do the search engine store the IP
addresses [of searchers] for so long and what
are they using them for?”
The Norwegian Data Inspectorate,
independent administrative body under the
Norwegian Ministry of Labour and Government
Administration, wants answers and is
investigating the data storage policies of a
number of search engines, including Google and
Norwegian search engines Sesam and Kvasir. The
focus is on whether the storage of large
quantities of deta related to internet searches
is a violation of Norwegian data protection laws.
According to the latest news reports a
European Union advisory body has written a
letter to Google warning the search giant that
its pratices fall short of EU data protection
standards. Google confirmed that it received an
earlier letter from the Norwegian Data
Protection Group. Details were not yet released.
b. Privacy Concerns
Surround Proposed Google, DoubleClick Merger
In the USA, three consumer advocate
organizations have filed a joint complaint with
the Federal Trade Commission (FTC) requesting
Google/DoubleClick merger be stopped.The
complaint asserts that "neither Google or
DoubleClick have taken adequate steps to
safeguard the personal data that is collected."
The complaint says that Google's acquisition of
DoubleClick "will give one company access to
more information about the Internet activities
of consumers than any other company in the world.
There is simply no consumer privacy issue more
pressing for the Commission to consider than
Google's plan to combine the search histories
and Web site visit records of Internet users."
c. Google wants to alter data retention policy
According to a March 14 announcement, Google
will over the next few months begin to anonymize
search data it retains. The plan is to strip
parts of IP data from records in order to
protect the user’s privacy and reduce the
likelihood that the IP address or cookie
information can be tied to a particular user.
All around the world, prospective employers
often use search engines to learn things about job applicants that cannot be discerned from the usual routine of resume, interview, and references.
All around the world? Maybe no longer in Finland,
the country with the strictest privacy laws in
the EU! Under the Protection of Privacy in
Working Life Act, an employer may collect
information on its employees or job applicants
primarily from the employees or job applicants
themselves. If "other sources" are used, consent
from the employee must be obtained.
Finnish Data Protection Ombudsman ruled in
November 2006 that employers can not use
information which is obtained by using Internet
search engines, such as Google.
The statement was given in response to a job
applicant’s complaint that a prospective
employer had used a five-year old news group
discussion posting found on the Internet to the
detriment of the applicant. In the news group
discussion posting, the applicant claimed to be
mentally unstable. During the job interview, the
applicant discovered that his potential new employer had documents resulting from an Internet search that referred to aspects of his personal life, including his participation in
a mental health conference (which he attended as a patient’s representative). However, the information at the employer’s disposal did not clarify the applicant’s status at the conference, leading the employer to
believe that the potential employee could have had a mental health disorder.
b. Google, Inc. v. American
Blinds & Wallpaper Factory, Inc., C 03-5340 JF (N.D. Cal. April 18, 2007)
U.S. District Court Judge Jeremy
Fogel in San Jose, Calif., refused to completely dismiss a lawsuit filed by
American Blind & Wallpaper Factory that alleges that Google's AdWords
pay-per-click advertising system violates trademark law by allowing rivals of a
company to buy ads that appear when people search for information on American
Blind & Wallpaper Factory. The ruling granted some claims while rejecting others
in Google's motion for summary judgment. "The large number of businesses and
users affected by Google's AdWords program indicates that a significant public
interest exists in determining whether the AdWords program violates trademark
law," Fogel wrote in his decision.
A New Jersey building contractor
is suing consumer-complaint site The Rip-Off Report for hosting a customer's
negative feedback about him, and he's also going after Google for indexing the
criticism and returning it in search results. Chances of success: Probably 0%,
because Google is covered by 47 USC 230 for this content!
9. Use of Thumbnail Images
not infringing in Germany
According to the District Court
of Erfurt (text
in German), Google's use of thumbnails in its image search engine does not
vialate German copyright law. People who create web sites have a standing
interest in getting other people to learn about and visit their web sites. The
depiction of thumbnails is thus, in this case, beneficial for the copyright
holder, the court wrote. Webmasters who want to restrict access to their content
could make use of the robots.txt file.
The decision stands in direct
opposition to a 2003 Hamburg court decision (text
in German), which said that Google's image search engine violates copyright
law because Google has no permission to display the images.
I personally find the Erfurt
court decision more compelling. It also reflects my view, expressed in an
article, published in the ZUM 2007, pages 119 - 128.
New in Legal
Anmerkung zu LG Braunschweig - AdWords, MMR
Anmerkung zu LG München I - Framing, MMR
Ott, Stephan, Zulässigkeit der Erstellung
von Thumbnails durch Bilder- und Nachrichtensuchmaschinen?, ZUM 2007, 119-128